Sonvir @ Somvir v. the State of Nct of Delhi
INDU MALHOTRA, J. 1. The present Criminal Appeal has
been filed by the Appellant-Accused No. 2 against the judgm ent and
order dated 10 th December 2014 passed by the Delhi High Court in
Criminal Appeal No.1300 of 2014. The appellant, along with Accused
Nos. 1 and 3, were convicted for offences punishable under Sec tions
302, 392 read with Section 34 of the IPC by the Sessions Court. The
High Court affirmed the sentence awarded to Accused Nos. 1 and 2 .
The present appeal has been preferred by the Appellant-A ccused No.
2. Accused No. 1 has apparently not challenged the judgment of the
High Court, and is serving the sentence awarded.
1.1 The prosecution case is that on 20 th October 2009, the PCR
received information at 11:45 a.m. from some secret informer
stating that House No. C-190, Kinner Wali Building, Shaheen
Bagh, New Delhi, was locked and there was something wrong
inside. The police opened the main gate with the help of a key
maker. On entering the main gate, dried blood was found on
the floor, and on the right side a Maruti car bearing No. 800
DL-6CA-3414 was found parked with all four tyres deflated.
On the left-hand side, inside the bathroom, the dead body of
Meena Kinner, aged 30 years, was found with injury marks on
the neck and right arm. On the first floor, the dead body of
one Vimlesh Kinner, aged 45 years, was found on the double
bed. The body of Vimlesh had injury marks on the neck, chest,
arm, toe, index finger etc. Articles were found scattered in the
house. Both the deceased were persons of the third gender.
1.2 Post-mortem was conducted on the body of Vimlesh by Dr.
Sunay M (PW-2) who opined that the cause of death was
shock due to haemmorhage caused by injuries from a sharp
weapon. Dr. Susheel Sharma (PW-7) conducted the pos t-
mortem on the body of deceased Meena. The injuries were
found sufficient to cause death in the ordinary course of nature.
The injuries were caused by a sharp pointed heavy weapon.
1.3 The Investigating Officer (“ I.O. ”) - Inspector Amrit Raj (PW-
32A), got the FIR registered on the statement of Khalil Ahmed
(Accused No. 3) who introduced himself as being in t he
relationship akin to that of a husband and wife wit h the
deceased Vimlesh.
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Sub-Inspector Naresh Kumar Sharma (PW-8),
In-charge of the Fingerprint Bureau, Crime Branch, Kamla
Market visited the spot, and picked up six chance prints.
1.4 On 3 rd November 2009, at about 8:30 pm on the basis of secret
information, the police apprehended Sultan @ Rajesh (Accused
No. 1) who was the driver of the deceased Vimlesh. Sultan @
Rajesh (Accused No. 1) allegedly disclosed that Sonvir @
Somvir (Appellant-Accused No. 2) a taxi-driver, Khalil Ahmed
(Accused No. 3), and “N” (Juvenile) were also involved in the
conspiracy with him. As per the prosecution case, Sultan @
Rajesh (Accused No. 1) at the time of being apprehended,
was allegedly found to be carrying a black bag on his shoulder
containing 15 items of golden jewellery, 2 pairs of payjeb , 6
silver coins, Rs. 2,00,000/- in cash, one wrist watch of ICICI
make, and two photographs of the deceased Vimlesh.
1.5 Later the same day at night, Sultan @ Rajesh (Accused No.
1) led the police to Sonvir @ Somvir (Appellant-Accused No.
2), who was staying in a room in the house of Teja Chaudhary.
At the time of arrest, Sonvir @ Somvir (Appellant-Accused
No. 2), was allegedly also carrying a black coloured bag
containing 15 items of golden jewellery, 2 items of silver, 6
silver coins and Rs. 50,000/- in cash. Sonvir @ Som vir
(Appellant-Accused No. 2) led the police to his room, and
brought out a blood-stained knife, and a blood-stained shirt,
from a bucket.
1.6 It is further alleged that the police apprehended Khalil Ahmed
(Accused No. 3) at Hari Nagar who was also allegedly carrying
a bag with him. On searching the bag, some golden jewellery,
2 wrist watches, and Rs. 3,00,000/- in cash were allegedly
recovered at about 4.35 a.m. on 4 th November 2009.
1.7 Khalil Ahmed (Accused No. 3) then led to the arrest of “N ”
(Juvenile) on 4 th November 2009. “N” (Juvenile) was sleeping
on the floor with a bag under his pillow. On searching the bag,
some jewellery items, 1 Nokia 6600 mobile phone and Rs.
32,000/- in cash were allegedly recovered.
1.8 On 7 th November 2009, Sultan @ Rajesh (Accused No. 1)
and Sonvir @ Somvir (Appellant-Accused No. 2) led the police
SONVIR @ SOMVIR v. THE STATE OF NCT OF DELHI
[INDU MALHOTRA, J.]
to Village Bhind, District Morena for the recovery of a Maruti
van belonging to Vimlesh. The Maruti van with the broken
number plate had already been seized by ASI Udai Bhan Singh
Parmar (PW-23) on 1 st November 2009 from Gate No. 2 of
the Punj Llyod Factory at Noorabad. It was handed over to
the I.O. - SI Amrit Raj (PW-32A) on 8 th November 2009. The
Maruti van along with the articles in it were seized by the I.O.
- SI Amrit Raj (PW-32A). A broken number plate was allegedly
recovered by the police near Gate No. 2 of the Punj Llyod
Factory at Noorabad at the instance of Sultan @ Raje sh
(Accused No. 1) and Sonvir @ Somvir (Appellant-Accused
No. 2).
1.9 On 12 th November 2009, Sultan @ Rajesh (Accused No. 1)
led the police to the garage of Quarter No.86, Type-II, Ja l
Vihar and brought out a polythene bag after digging the earth.
The said polythene bag allegedly contained Rs. 40,000/- in cash
and 2 golden chains.
1.10 The I.O - SI Amrit Raj (PW-32A), obtained finger impressions
of two of the accused viz. Sultan @ Rajesh (Accused No. 1)
and Sonvir @ Somvir (Accused No. 2) whilst they were in
police custody.
1.11 The finger impressions were taken by the I.O. – SI Am rit
Raj (PW-32A), without obtaining the permission of t he
Magistrate as per Section 5 of the Identification of Prisoners
Act, 1920.
1.12 There is no eye witness of the incident. The case is bas ed
wholly on circumstantial evidence.
1.13 That since “N” was a juvenile, he was proceeded separately
by the Juvenile Justice Board.
1.14 The trial proceeded against the three accused viz. Sultan @
Rajesh (Accused No. 1), Sonvir @ Somvir (Appellant-Accused
No. 2), and Khalil Ahmed (Accused No. 3). Khalil Ahmed
(Accused No. 3) stated that he was in a relationship akin to
that of a husband and wife with the deceased Vimlesh. Sultan
@ Rajesh (Accused No. 1) was employed as a driver by
Vimlesh; whilst Sonvir @ Somvir (Accused No. 3) was a taxi
839
driver, whose taxi had been engaged by Vimlesh on some
occasion, as per Sonvir @ Somvir’s statement recorded under
Section 313 of the Cr.P.C.
2. The Trial Court vide Judgment and Order dated 3 rd June 2014
convicted all the three accused for offences punishable under Sections
302 and 392 r.w. Section 34 of the IPC.
2.1 The Trial Court held that most of the injuries were stab wounds/
laceration/incised wounds. Apart from this, it was found that
the articles in the house of the deceased were found scattered,
which made it clear that the victims were killed because of
robbery. The Trial Court notes that none of the accused claimed
the jewellery items/cash allegedly recovered from t heir
possession as belonging to the them. The accused submitted
that they had been falsely implicated in the case.
The Trial Court records that it is true that no pers on from the
public was joined at the time of recovery. The recoveries were
allegedly made only in the presence of police officers i.e. PW-
21, PW-25, PW-31, PW-34 and PW-36.
2.2 With respect to the present appellant, it is alleged that a blood-
stained shirt, and one blood-stained “ churra ” were recovered
from a plastic bucket lying under a dining table of his room in
the house of Teja Chaudhary. As per the Scientific Officer ,
articles seized from the house of the victim, and the shirts of
the accused, had the same blood group “B”. It is further alleged
that out of the six chance prints marked Q1-Q6, Q5 wa s
identical with the left palm impression of the present appellant.
2.3 The Trial Court holds that the recovery leads to a presumption
that the accused along with the other accused had committed
the robbery. It is further held that it is not established that which
of the accused had caused the fatal blow, using any dangerous
weapon. Similarly, it is not established from the record that the
accused persons had hatched any conspiracy to kill the victims.
Hence, no offence punishable under Sections 397 or 120-B
IPC is made out.
3. That all the three accused preferred appeals before the High
Court. The High Court granted benefit of doubt to Khal il Ahmed
SONVIR @ SOMVIR v. THE STATE OF NCT OF DELHI
[INDU MALHOTRA, J.]
(Accused No. 3) on the ground that the recovery of jewellery and cash
cannot be taken to be incriminating as a stand-alone evidence . That
since Khalil Ahmed (Accused No. 3) has stated that he wa s in the
relationship of husband and wife with the deceased Vimlesh, Accused
No. 3 could have owned and possessed jewellery and cash.
3.1 The High Court has recorded, in paragraph 16 of the Judgment,
that none of the jewellery items were subjected to a T est
Identification Parade during the investigation. Even in the dock,
no witness identified that the jewellery recovered at the instance
of the three accused belonged to the deceased. Further, in
paragraph 18 of the Judgment, the High Court holds that the
prosecution had not proved that the jewellery recovered from
the appellant belonged to the deceased. Hence, the recovery
of jewellery articles cannot be held to be connected with t he
offence.
3.2 In paragraph 19 of the Judgment, the High Court has further
held that with respect to the alleged recovery of a knife from
Sonvir @ Somvir, on examination by the FSL, no blood grouping
could be given. Furthermore, no opinion was sought from the
post-mortem doctor whether the injuries to the deceased were
possible by the said weapon of offence. In the absence of any
witness identifying the weapon of offence used in t he
commission of crime, or the opinion of the post-mortem doctor
that the injury was possible by the said knife, or the FSL report
regarding the blood of the deceased being found, the knife
could not be said to be connected with the offence, and cannot
be used as a piece of incriminating evidence against him.
3.3 The High Court dismissed the appeals filed by Sultan @ Rajesh
and Sonvir @ Somvir and affirmed the judgment of the Trial
Court on the ground that the prosecution had proved the
recovery of blood-stained shirts at their instance, which were
found to be blood-stained with the “blood group” of the deceased
i.e. “B” group, unaccounted jewellery and cash, recovery of
the Maruti van, a piece of broken number plate of the said
van.
4. Aggrieved by the judgment of the High Court, Sonvir @ Somvir
(Appellant-Accused No. 2) has filed the present SLP, which wa s re-
numbered as Criminal Appeal No. 958 of 2017.
841
Sultan @ Rajesh (Accused No. 1) has apparently not challenged
the judgment of the High Court, and is undergoing the sentence awarded.
5. The legal evidence relied by the prosecution against Sonvir @
Somvir (Appellant-Accused No.2) is as follows:
(i) recovery of unaccounted jewellery and cash;
(ii) recovery of the blood-stained knife;
(iii) recovery of blood-stained shirt;
(iv) recovery of abandoned Maruti van and broken number plate;
(v) report of the Forensic Expert stating that the chance pri nts
lifted from the scene of crime, matched the finger impressions
obtained from the Appellant whilst he was in police custody.
6. The legal evidence adduced by the prosecution is dealt with
seriatim , to determine whether the prosecution has proved the case for
offences punishable under Sections 302, 392 read with Section 34 of the
IPC against the present Appellant beyond reasonable doubt.
6.1 A LLEGED RECOVER Y OF UNACCOUNTED JEWELLER Y AND CASH
As per the prosecution case, 15 items of golden jewellery, 2 items
of silver, 6 silver coins and Rs. 50,000/- in cash were allegedly
recovered from Sonvir @ Somvir (Appellant-Accused No. 2) at
the time of his arrest on 3 rd November 2009, which was 16-17
days after the date of the occurrence of the offence. The sa id
jewellery and cash belonged to the deceased Vimlesh. Sonvir @
Somvir (Appellant-Accused No. 2) did not claim that the jewellery
and cash belonged to him, and failed to give an explanation in his
statement recorded under Section 313 of the Cr.P.C., as to how
he was in possession of such a large amount of jewellery and
cash.
Sonvir @ Somvir (Appellant-Accused No. 2) in his stateme nt
recorded under Section 313 of the Cr.P.C. stated that the recovery
was planted, and that he had been falsely implicated.
The prosecution alleged that 16-17 days after the d ate of
occurrence of the offence, when each of the accused was
apprehended, each of them was found holding bags of jewellery.
SONVIR @ SOMVIR v. THE STATE OF NCT OF DELHI
[INDU MALHOTRA, J.]
This seems improbable and unnatural. In the case of Son vir @
Somvir (Appellant-Accused No. 2), he was apprehended from
his room in the house of one Teja Chaudhary.
The brother of deceased - Vimlesh, one Mohd. Ayub (PW-4) has
denied the suggestion of the learned APP that he was shown the
jewellery recovered from the possession of the accused persons,
or that he identified the jewellery articles to be belo nging to
Vimlesh. The jewellery articles were not identified to be of the
deceased. In these circumstances, the alleged recov ery of
jewellery and cash from Sonvir @ Somvir (Appellant-Accused
No. 2) could not be taken as a piece of incriminating evidence.
6.2 A LLEGED RECOVER Y OF BLOOD -ST AINED KNIFE
As per the prosecution, a blood-stained knife was also recovered
from Sonvir @ Somvir (Appellant-Accused No. 2), at the time of
his arrest. As per the FSL report (Ex. PW-33/A), while the knife
was found to be stained with human blood, no blood grouping
could be given. The High Court, in paragraph 19 of its judgment,
found that in the absence of any witness identifying the weapon
of offence used in the commission of crime, or the opinion of the
post-mortem doctors that the injury was possible by the said knife,
or the FSL report regarding the blood of the deceased being found
on the said knife, the knife cannot be said to be connected wit h
the offence. On the basis of the above finding, the High Cou rt
concluded that the recovery of the knife at the instance of Sonvir
@ Somvir (Appellant-Accused No. 2) cannot be used as a piece
of incriminating evidence against him.
As a consequence, the weapon of offence allegedly recovered
from Sonvir @ Somvir (Appellant-Accused No. 2) and used in
the commission of the crime, cannot be taken as a piec e of
incriminating evidence against him.
6.3 A LLEGED RECOVER Y OF BLOOD -ST AINED SHIR T
As per the prosecution, a blood-stained shirt was recovered at
the instance of Sonvir @ Somvir (Appellant-Accused No. 2) from
his room in the house of Teja Chaudhary, at the time of his arrest.
The blood-stained shirt was sent for analysis to the FSL. As per
the FSL report (Ex. PW-33/A), the shirt allegedly recovered from
Sonvir @ Somvir (Appellant-Accused No. 2) was found to be
843
stained with human blood of “B” group, which was the same
“blood group” as that of the deceased.
In paragraph 20, the High Court held the recovery of the blood-
stained shirt from Sonvir @ Somvir (Appellant-Accused No. 2)
to be incriminating against him, since the blood samples t aken
from the bed-sheet at the scene of crime, were also found to be
of the same blood group.
It is relevant to note that as per the FSL report (Ex. PW-33/A),
both the blood-stained shirt allegedly recovered from Sonvir @
Somvir (Appellant-Accused No. 2) and the blood samples taken
from the bedsheet at the scene of crime were found to be stained
with human blood of “B” group.
The mere matching of the blood-group of the blood samples taken
from the bed-sheet at the scene of crime, and the blood-stained
shirt recovered from Sonvir @ Somvir (Appellant-Accused No.
2) cannot lead to the conclusion that the appellant ha d been
involved in the commission of the crime.
On this issue, reliance can be placed on two decisions of th is
Court in Prakash v. State of Karnataka [(2014) 12 SCC 133;
paragraphs 41 and 45] and Debapriya Pal v. State of West Bengal
[(2017) 11 SCC 31; paragraph 8] wherein this Court while deciding
cases based on circumstantial evidence had held tha t mere
matching of the blood group cannot lead to the conclusion of the
culpability of the accused, in the absence of a detailed serological
comparison, since millions of people would have the same blood
group.
In the present case, the prosecution has not proved that the room
from where the blood-stained knife and blood-stained shirt were
allegedly recovered, was in the exclusive possession of the
appellant. The prosecution case is that the said room was in the
house owned by one Teja Chaudhary. The prosection did not
examine the said Teja Chaudhary to prove that the said room was
rented to Sonvir @ Somvir and/or was in the exclusive custody of
the appellant.
Therefore, the recovery of the blood-stained shirt from Sonvir @
Somvir (Appellant-Accused No. 2) cannot be used as an
incriminating piece of evidence.
SONVIR @ SOMVIR v. THE STATE OF NCT OF DELHI
[INDU MALHOTRA, J.]
6.4 A LLEGED RECOVER Y OF THE M ARUTI VAN AND THE BROKEN NUMBER
PLA TE
The prosecution alleged that both Sultan @ Rajesh (Accused No.
1) and Sonvir @ Somvir (Appellant-Accused No. 2) disclosed
that they had abandoned the Maruti van belonging to Vimlesh 20
kilometers from Gwalior. They were taken to Morena by the I.O.
- SI Amrit Raj (PW-32A), on 8 th November 2009. The Maruti van
with a broken number plate had, however, already been seized by
ASI Udai Bhan Singh Parmar (PW-23) as unclaimed on 1 st
November 2009.
Further, both these accused allegedly led the police party nea r
Gate No. 2 of the Punj Lloyd Factory at Noorabad from where
the Maruti van had already been recovered, and got recovered
the broken number plate bearing number “86”. The recovery of
the Maruti Van and the broken number plate was held to be a
piece of incriminating evidence against Sultan @ Rajesh (Accused
No. 1) and Sonvir @ Somvir (Appellant-Accused No. 2) by the
Trial Court.
SI Abhisek Singh (PW-30) had stated in his cross-examination
that no public person/independent witness was present at the time
of the alleged recovery. It is important to note that whil e ASI
Udai Bhan Singh Parmar (PW-23) stated that the broken number
plate was allegedly recovered from the garbage dump, SI Abhishek
Singh (PW-30) and Inspector Amrit Raj (PW-32A) stated that it
was allegedly recovered from the bushes. The absence of any
independent witness of the alleged recoveries, and the discrepancy
in the statements of the police officers, makes the prosec ution
case doubtful.
6.5 F ORENSIC REPOR T REGARDING MA TCHING FINGER IMPRESSIONS
The prosecution relied upon the report tendered by the Senior
Finger Print Expert of the Fingerprint Bureau, RN Rawat (PW -
35), to state that the finger impressions obtained from Sonvir @
Somvir matched with the chance prints obtained from the scene
of crime.
The Trial Court and the High Court considered the six chance
prints lifted from the first floor of the house by SI Naresh Kumar
845
Sharma (PW-8), In-charge of the Finger Prints Bureau, Crime
Branch. Chance prints Q1 to Q3 were lifted from the iron box on
the first floor, Q4 from the showcase glass, and Q5 and Q6 from
the iron safe. The Senior Finger Prints Expert of the Fingerprint
Bureau, RN Rawat (PW-35), vide his reports (Ex. PW-35/A and
Ex. PW-35/B), opined that the chance print marked Q1 wa s
identical to the specimen right palm impression of Sultan @ Rajesh
(Accused No. 1), while chance print marked Q5 was identical to
the specimen left palm impression of Sonvir @ Somvir (Appellant-
Accused No. 2).
The specimen chance prints of both these accused viz. Rajesh @
Sultan (Accused No. 1) and Sonvir @ Somvir (Appellant-Accused
No. 2) were taken by the I.O. - SI Amrit Raj (PW-32A), without
obtaining any order of a Magistrate whilst the accused wer e in
police custody.
This leads to the issue as to whether the report of the Forens ic
Expert is admissible in evidence, in light of the provisions of the
Identification of Prisoners Act, 1920 (“ the Act ”) since no rules
have been framed prescribed by the Government of NCT of Delhi.
This issue is being dealt with in the separate Judgment by Justice
Ashok Bhushan.
7. In the aforesaid facts and circumstances, the prosecution ha s
failed to make out the complete chain of circumstances to establish the
guilt of the appellant beyond reasonable doubt. As a result, the present
appeal is allowed, and the judgment and order passed by the High Court
dated 10.12.2014 in Criminal Appeal no. 1300 of 2014 is set aside. The
appellant is acquitted of the charges under Sections 302, 392 read with
Section 34 of the I.P.C. 1860.
ASHOK BHUSHAN, J. 1. I have gone through the elaborate
judgment prepared by Sister Justice Indu Malhotra.
2. The appellant has been convicted under Sections 302, 392 read
with Section 34 of the IPC by Addl. Sessions Judge-02:South East Saket
Court, New Delhi. The appeal against the conviction has als o been
dismissed by the Delhi High Court by judgment dated 10.12.2014.
Detailed facts of the case including prosecution case and the evidence
on record have been elaborately noted by Sister Justice Indu Malhotra
SONVIR @ SOMVIR v. THE STATE OF NCT OF DELHI
in her judgment. Hence, I feel no necessity to repeat the sam e. After
elaborate consideration of entire evidence on record Sister Justice Indu
Malhotra has come to the conclusion that appeal should be allowed and
appellant be acquitted.
3. I fully agree with the above view of the Sister Justi ce Indu
Malhotra. However, an important question of law per taining to
interpretation of Sections 4 and 5 of the Identification of Prisoners Act,
1920 being involved in the present appeal, I proceed to consider the
same and give my reasons.
4. Now, I proceed to examine the provisions of the Identification
of Prisoners Act, 1920.
5. The statement of objects and reasons provides a fair idea of
the purpose and object for which the Identification of Prisone rs Act,
1920 (hereinafter referred to as ‘1920 Act’) was enacted. The statement
of objects and reasons reads:
“The object of this Bill is to provide legal authority for the taking
of measurements, finger impressions, foot-prints and photographs
of persons convicted of, or arrested in connection with, certai n
offences. The value of the scientific use of finger impres sions
and photographs as agents in the detection of crime an d the
identification of criminals is well known, and modern development
in England and other European countries renders it unnecessary
to enlarge upon the need for the proposed legislation.
The existing system by which the police in India takes finge r
impressions, photographs, etc., of criminals and suspected criminals
is void of legal sanction, except as regards registered members of
criminal tribes, in whose case provision exists for the taking of
finger impressions in section 9 of the Criminal Tribes Act, 1911
(III of 1911). The need for legalizing the practice has long been
recognised, but it was not thought expedient to take the matter up
so long as no practical difficulties arose. Instances have recently
been reported to the Government of India where prisoners have
refused to allow their finger prints or photographs to be ta ken.
With a view to prevent such refusals in future it is consid ered
necessary without further delay to place the taking of
measurements, etc., which is a normal incident of police work in
India as elsewhere, on a regular footing. No measurement, etc .,
847
of any person will be taken compulsorily unless that person has
been arrested.”
6. The above objects and reasons notice that under the exist ing
system the Police in India takes finger impressions, photographs etc. of
criminals and suspected criminals, which is void of legal sanction. Thus,
the above mischief was sought to be remedied by the 1920 Act. In last
part of the statement of objects and reasons the purpose has been clearly
mentioned i.e. “with a view to prevent such refusals in future it is
considered necessary without further delay to place the taking of
measurements, etc., which is a normal incident of Police work in India
as elsewhere, on a regular footing”.
7. Now, we come to Section 3, 4 and 5 which are relevant for the
present purpose. Section 3 provides for taking of measure ments of
convicted persons which is as follows:
“3. Taking of measurements etc., of convicted persons .–
Every person who has been–
(a) convicted of any offence punishable with rigorous imprisonment
for a term of one year or upwards, or of any offence which would
render him liable to enhanced punishment on a subse quent
conviction; or
(b) ordered to give security for his good behaviour under section
118 of the Code of Criminal Procedure, 1898 (5 of 1898)shall, if
so required, allow his measurements and photograph to be taken
by a police officer in the prescribed manner.”
Section 4 deals with taking of measurements of non-convicted
persons which is to the following effect:
“4. Taking of measurements, etc., of non-convicted
persons.– Any person who has been arrested in connection with
an offence punishable with rigorous imprisonment for a term of
one year or upwards shall, if so required by a police officer, allow
his measurements to be taken in the prescribed manner.”
Section 5 deals with the power of Magistrate to order a person to
be measured or photographed which is as follows:
“5. Power of Magistrate to order a person to be measured
or photographed.– If a Magistrate is satisfied that, for the
SONVIR @ SOMVIR v. THE STATE OF NCT OF DELHI
[ASHOK BHUSHAN, J.]
purposes of any investigation or proceeding under the Code of
Criminal Procedure, 1898, it is expedient to direct any person to
allow his measurements or photograph to be taken, he may make
an order to that effect, and in that case the person to whom the
order relates shall be produced or shall attend at the time and
place specified in the order and shall allow his measurements or
photograph to be taken, as the case may be, by a police officer:
Provided that no order shall be made directing any person to be
photographed except by a Magistrate of the First Class:
Provided further, that no order shall be made under this section
unless the person has at some time been arrested in connect ion
with such investigation or proceeding.”
8. The scheme of the Act indicates that Section 3, Section 4 and
Section 5 are separate and independent provisions pertaining to taking
of measurements. Measurement has been defined under Section 2(a) to
include finger impression and footprint impression. In the present case,
it is the Police Officer, who have taken fingerprints of the appellant after
he was arrested which is referable to Section 4 of the Act .
9. The High Court in paras 22 and 23 of the judgment has dealt
with the chance print. In para 22, High Court has observed th at the
specimen chance print of Sonvir alias Somvir was not taken in the
presence of a Magistrate. In para 23 of the judgment reasons have been
given for discarding the evidence of palm impression of appel lant.
Following three reasons are decipherable from the judgment:
a. The Full Bench judgment of the Delhi High Court in Sapan
Haldar & Another vs. State 191 (2012) DLT 225 lays down
that only when by way of rules or executive instruction the manner
is prescribed to take the measurements then alone an IO under
Section 4 of the 1920 Act can obtain the measurements.
b. It would be eminently desirable as per the decision in Mohd.
Aman and Anr. vs. State of Rajasthan (1997) 10 SCC 44 to
follow the procedure ordained under Section 5 of 1920 Act.
c. No rules having been framed in Delhi and procedu re as
prescribed under Section 5 of the 1920 Act having not been followed
849
we would discard the evidence of the palm impression of Sonvir
alias Somvir.
10. Now, we proceed to examine the above reasons.
11. The Full Bench Judgment of the Delhi High Court in Sapan
Haldar and Another (supra) has been heavily relied by the High Court.
The above full Bench was constituted on the subject of admissibility of
samples, hand writing or signatures obtained from a person accused of
having committed an offence during investigation of a crime by the IO.
12. In para 1 of the judgment while noticing the subject matter of
reference, the Full Bench has also noticed an earlier Full Bench judgment
in Bhupinder Singh vs. State, decided on 30.09.2011.
13. Before we proceed further, it is necessary to note the F ull
Bench judgment of the Delhi High Court. In Bhupinder Singh vs.
State ,(Crl.A.No.1005/2008, decided on 30.09.2011) para 1 of the
judgment notices the question which has been referred for adjudication
by a larger bench. Para 1 of the judgment of Bhupinder Singh (supra)
is as follows:
“1. Expressing doubt with regard to the correctness of the decisions
in Harpal Singh v. State (Criminal Appeal No. 362/2008 decided
on 25 th May, 2010) and Satyawan v. State (Criminal Appeal No.
34/2001 decided on 9 th July, 2009) wherein the two Division
Benches had ignored the part of the report of the handwriting
expert on the ground that the investigating officer had ta ken
specimen handwriting in violation of the provisions of the
Identification of Prisoners Act, 1920( for brevity ‘the 1920 Act’),
the Division Bench that was hearing the Criminal Appeals No.
1005/2008[Bhupender Singh v. The State (Govt. Of NCT of Delhi)]
and No. 408/2007 [Drojan Singh v. The State (Govt. Of NCT of
Delhi)], referred the following question to be adjudicated by a
larger Bench:
“Whether the sample finger prints given by the accused during
investigation under Section 4 of the Identification of Prisone rs
Act, 1920 without prior permission of the Magistrate under Section
5 of the Act will be admissible or not?”
Under these circumstances, the matter has been placed bef ore
us.”
SONVIR @ SOMVIR v. THE STATE OF NCT OF DELHI
[ASHOK BHUSHAN, J.]
14. Full Bench in Bhupinder Singh’s case after noticing Sections
3, 4 and 5 of the 1920 Act and referring to the judgments of this Court in
Shankaria vs. State of Rajasthan, (1978) 3 SCC 435; Mohd. Aman
and Another vs. State of Rajasthan, (1997) 10 SCC 44 and State of
Madhya Pradesh vs. Devendra (2009) 14 SCC 80 as well as State
of Uttar Pradesh vs. Ram Babu Misra, (1980) 2 SCC 343 , approved
the view of learned Single Judge in Sunil Kumar @ Sonu vs . State of
NCT of Delhi(Crl.A.No.446 of 2005) case. In para 22 of the judgment
Full Bench held:
“22. Thus understood, in our considered opinion, th e view
expressed in the decisions in Harpal Singh (supra) and Satyawan
(supra) is not the correct view. Therefore, the decisions rendered
therein are hereby overruled. The view expressed in the case of
Sunil Kumar (supra) by the learned Single Judge lays down t he
law in correct perspective.”
15. Sunil Kumar’s case which was approved by the Full Bench
has been noticed in para 10, which is to the following effect:
“10. It is worth noting that a Single Judge of this Court in Sunil
Kumar @ Sonu Vs State of NCT of Delhi, Crl.A. No. 446 of
2005 decided on 25.3.2010, without taking note of the Division
Bench decisions, has held thus:
“26. It is true that the specimen finger print impressions of the
appellants were taken by the IO directly and not through the
Magistrate as provided in Section 5 of Identification of Prisoners
Act. But, that, to my mind was not necessary because Section
4 of Identification Prisoners Act specifically provides that any
person who has been arrested in connection with an offence
punishable with rigorous imprisonment for a term of one year
or upwards shall, if so required by a police officer, allow hi s
measurement to be taken in the prescribed manner. In view of
the independent powers conferred upon a police officer under
Section 4 of the Act, it was not obligatory for him to approach
the Magistrate under Section 5 of the Act. He would have
approached the Magistrate, had the appellants refused to give
Specimen Finger Print Impressions to him. Therefore, n o
illegality attaches to the specimen finger print impressions taken
by the Investigating Officer. The court needs to appreciate
851
that the very nature and characteristic of material such as finger
prints renders it intrinsically and inherently impossible for
anyone to fabricate them. If there is an attempt to fabr icate
finger prints, that can certainly be exposed by the accused by
offering to allow his finger prints to be taken so that the same
could be compared through the process of the court. Crl.A.
No.1005/2008 Page 7 of 15 None of the appellants has come
forward to the court with a request to take his finger print
impressions in the court and get them compared with the chance
finger prints lifted by PW-1 from Car No. DL 2C A 4116 on
21st December, 2000.””
16. It is thus clear that issue which was considered by Full Bench
of the Delhi High Court in Bhupinder Singh case is the same issue
which is involved in the present case. But the High Court in the impugned
judgment without discussing and following the Full Bench judgment of
Bhupinder Singh’s case has relied on Sapan Haldar (supra).
17. Now reverting to Sapan Haldar case as noticed above, the
issue was with regard to admissibility of sample handwriting or signatures
obtained from a person accused of having committed an offence. The
Full Bench in Sapan Haldar case noticed para 18 of the Bhupinder
Singh case and in that reference proceeded to examine provisions of
Sections 4 and 5 of the 1920 Act.
18. In para 22 of Sapan Haldar case, reliance was placed on
judgment of this Court in Mahmood vs. State of U.P. AIR 1976 SC 69:
(1976) 1 SCC 542 :
“22. What happens if there is no manner prescribed for an
investigating officer to take the measurements of a person accused
of having committed an offence? In the decision reported as AIR
1976 SC 69 Mahmood vs State of Uttar Pradesh, specimen finger
print impressions taken by the investigating officer under Section
4 of The Identification of Prisoners Act, 1920, in the absence of a
manner prescribed for taking the finger print impressi ons, was
held to be a case of evidence not being admissible with respect to
the finger prints obtained and the opinion of the expert thereon.
The Supreme Court held that in said situation Section 5 of The
Identification of Prisoners Act, 1920 ought to have been followed.”
SONVIR @ SOMVIR v. THE STATE OF NCT OF DELHI
[ASHOK BHUSHAN, J.]
19. Para Nos. 26, 28 and 32 of the judgment are relevant which
are extracted as below:
“26. In the decision reported Thavaraj Pandian & Ors. vs. State,
the Division Bench of the Madras High Court noted that no Rules
were framed in the State of Tamil Nadu with respect to the manner
in which an investigating officer could obtain the finger prints of a
person accused of an offence as contemplated by Section 4 of
The Identification of Prisoners Act, 1920 but noted that there were
executive instructions with respect to the manner in which finger
print impressions could be taken by the investigating officer and
therefore opined that in said circumstance evidence relati ng to
finger print impressions obtained by the investigating officer would
be admissible in evidence; but on facts noted that the said
instructions were not followed and therefore held the evidence to
be inadmissible.
28. There is yet another argument which needs to be considered
with respect to Section 4 of The Identification of Prisoners Act ,
1920. The Section empowers a police officer to take measurements
of a person who has been arrested in connection with an offence
punishable with rigorous imprisonment for a term of one year or
upwards. Ex-facie, the Section would have no application where
the person is suspected of having committed an offence which is
punishable with death or imprisonment for life, as was held by a
Division Bench of the Bombay High Court in the decision reported
as ILR 1983 Bom. 1508 Nizammuddin Usman vs. State o f
Maharashtra.
32. Though not falling for consideration in this reference, wi th
respect to finger prints, which are included in ‘measureme nts’,
the weight of the authorities is that if by way of Rules or Executive
instructions the manner is prescribed to take the measurem ents,
alone then can an Investigating Officer, under Section 4 obtain
the measurements but strictly as per manner prescribed; but it
would be eminently desirable, as per the decision in Mohd. Aman’s
case (supra) to follow the procedure ordained under Section 5 of
The Identification of Prisoners Act, 1920. Relevant would it be to
further note that in relation to offences punishable with death or
imprisonment for life, Section 4 of The Identification of Prisoners
Act, 1920 would not be applicable because the said provisi on
853
specifies a prerequisite : that the person concerned is accused of
having committed an offence which is punishable with a sentence
to undergo rigorous imprisonment for a term of one year or upwards
i.e. the sentence must relate to imprisonment for a term and would
thus exclude such offences where either capital punishment or
imprisonment for life is the sentence contemplated.”
20. It is relevant to note that in para 32 Full Bench in Sapan
Haldar has itself noticed that issue regarding fingerprint does not fall
for the consideration in the reference. However, the Full Bench proceeded
to discuss the law on fingerprints when the issue did not directly fall for
consideration in the reference. We fail to see the necessity to lay down
any law with regard to Sections 4 and 5 in Sapan Haldar’s case when
reference was with regard to admissibility of sample handwriting obtained
from a person accused of having committed an offenc e during
investigation of crime.
21. We, however, in spite of the above proceed to examine the
observations made by Full Bench in Sapan Haldar (supra) in context
of Section 4. Judgment of this Court in Mahmood vs. State of U.P.
(supra) was relied. Full Bench in Sapan Haldar read the judgment of
this Court in Mahmood vs. State of U.P. as laying down that “in the
absence of a manner prescribed for taking the fingerprints impressions
was held to be a case of evidence not being admissible with re spect to
fingerprints obtained and the opinion of expert thereon”. The perusal of
the judgment of this Court in Mahmood case (supra) indicates that
there was complaint by the accused that his fingerprints wer e forcibly
taken by the Police on some round object which has been noticed i n
para 10 of the judgment. This Court noticed that specimen finger prints
of the appellant were not taken before or under the order of Magistrate
which was held suspicious feature on the conduct of the investigation. It
was further held that even if it is assumed that only a gandasa bore
fingerprints of the appellant then also it would not be inex orably and
unmistakenly lead to the conclusion that the appellant and none- else
was the murderer. Following was held in para Nos. 16, 18 and 19:
“16. Furthermore, the specimen fingerprints of the appellant were
not taken before or under the order of a Magistrate in accordance
with Section 5 of the Identification of Prisoners Act. This is another
suspicious feature of the conduct of investigation. It has not been
explained why this Magistrate was kept out of the picture.
SONVIR @ SOMVIR v. THE STATE OF NCT OF DELHI
[ASHOK BHUSHAN, J.]
18. Secondly, even if it is assumed that the handle of this gandasa
bore the fingerprints of the appellant, then also it wou ld not
inexorably and unmistakably lead to the conclusion th at the
appellant, and none else was the murderer of Dwarka, unless i t
was firmly proved further that the fatal injury to the deceased
was caused with this weapon. Definite proof of this link was lacking
in this case. The missing link could be best supplied by showing
that there was blood on this gandasa, and that blood was of human
origin. But this was not done.
19. Lastly, it may be observed that Inspector Daryao Singh, PW
15, has not given any reasons in support of his opinion. Nor has it
been shown that he has acquired special skill, knowledge and
experience in the science of identification of fingerprints. It would
be highly unsafe to convict one on a capital charge without any
independent corroboration, solely on the bald and dogmatic opinion
of such a person, even if such opinion is assumed to be admissible
under Section 45 Evidence Act.”
22. In the above background this Court held that the solitary piece
of circumstantial evidence on which prosecution have staked their claim
is too shaky, suspicious and fragile to furnish a sound founda tion for
conviction, as held in para 20:
“20. In the light of the above discussion, we are of the view that
the solitary piece of circumstantial evidence on wh ich the
prosecution have staked their case, is too shaky, suspicious a nd
fragile to furnish a sound foundation for conviction.”
23. The above judgment cannot be read as a precedent laying
down that in the absence of a manner prescribed for taking o f fingers
impressions, the evidence is not admissible. We are of the view that
observations made by Full Bench in Sapan Haldar case in para 22 are
not supportable from the judgment of this Court in Mahmood vs. State
of U.P .
24. Now, we come to para 26 of the judgment of Sapan Haldar
case where Delhi High Court notices the Madras High Court judgment
in Thavaraj Pandian & Ors vs. State, 2003 Cri. L.J.264 2 where
Madras High court has held that no rule has been framed in the State of
Tamil Nadu with respect to manner in which an IO can o btain the
855
fingerprints of a person accused of an offence, but noted tha t there
were executive instructions with respect to manner in which fingerprints
impression could be taken. The Madras High Court has not relied on the
fingerprints impressions having noted that executive instructio ns for
taking of fingerprints were not followed. Thus, judgment of the Madras
High Court was on its own facts.
25. Now, we come to another reason. In para 28 of the judgment
of Sapan Haldar (supra), Full Bench of the Delhi High Court has held
that Section 4 of the 1920 Act is not applicable where a person is
suspected of having committed an offence which is punishable with death
or imprisonment of life. Section 4 of the Act provides with regard to a
person who has been arrested in connection with an offence punishable
with rigorous imprisonment for a term of one year or upwards. Wha t
Delhi High Court seems to suggest is that Section 4 is not a pplicable
when a person is suspected of committing an offence which is punishable
with death or imprisonment of life.
26. The purpose and object of empowering Police Officer to take
fingerprints in an offence punishable with rigorous imprisonment for a
term of one year or upwards is; for offences of trivial nature where
rigorous imprisonment is less than one year Police o fficer is not
empowered to take fingerprints. The use of words “rigorous imprisonment
for a term of one year or upwards” does not negate the punish ment of
life imprisonment or death.
27. The object of the Section was not to empower the Police
Officer to take fingerprints in trivial offences where im prisonment is
less than one year but the provision cannot be read to mean that Police
Officer does not have such power if imprisonment is for life or capital
punishment. The reading of Section 4 in the manner suggested by Full
Bench will negate the very purpose of empowerment of Police Officer
to take the fingerprints.
28. Now, we come to para 32 of the judgment where Delhi High
Court has held that the weight of the authorities is that if by way of
Rules or executive instructions, the manner is prescribed t o take the
measurements, alone then can an IO under Section 4 obtain the
measurements, but strictly, as per the manner prescribed. In para 32 of
the Sapan Halder (supra) , the judgment of the Mohd. Aman’s case
has also been referred to :
SONVIR @ SOMVIR v. THE STATE OF NCT OF DELHI
[ASHOK BHUSHAN, J.]
“32. Though not falling for consideration in this reference, with
respect to finger prints, which are included in „measureme nts ,
the weight of the authorities is that if by way of Rules or Executive
instructions the manner is prescribed to take the measurem ents,
alone then can an Investigating Officer, under Section 4 obtain
the measurements but strictly as per manner prescribed; but it
would be eminently desirable, as per the decision in Mohd. Aman
s case (supra) to follow the procedure ordained under Section 5
of The Identification of Prisoners Act, 1920.”
29. It is necessary to refer to the judgment of Mohd. Aman (supra)
relied by the Delhi High Court. In the Mohd. Aman case , the fingerprints
were taken on several occasions, in para 7 the facts have been noticed
which are to the following effect:
“7. As noticed earlier the only incriminating circumstance on the
basis of which the High Court upheld the conviction of Mohd.
Aman is that his fingerprints were found on a brass jug in the
house of the deceased. From the evidence adduced in proof of
the above circumstance it appears that the brass jug, to gether
with other articles, was seized, packeted and sealed on 14-4-1983
and forwarded to the Fingerprint Bureau after five days — on
19-4-1983 to be precise — through Constable Mohd. Sadique
(PW 4) along with a letter written by the investigating officer
(copy of which was marked as Ext. P-59). On the following day,
that is, 20-4-1983 the Bureau sent the articles back after ta king
photographs of the chance prints found on the jug and three other
articles (out of the sixteen sent) with a corresponding letter (Ext.
P-60). After Mohd. Aman was arrested on 20-4-1983 his specimen
fingerprints were taken by H.C. Ramji Ram (PW 24) a nd
forwarded to the Bureau on 24-5-1983. As the prints were not
clear, the same were returned by the Bureau asking for b etter
prints. Specimen fingerprints were thereafter again taken on 20-
6-1983 and sent to the Bureau. These prints were also sent back
and for the third time prints of Mohd. Aman were taken and sent
to the Bureau on 30-6-1983. Thereafter the Bureau gave its report
(Ext. 115) with the opinion that the chance fingerprints found on
the brass jug were similar to and identical with his spe cimen
fingerprints.”
857
30. This Court observed that the prosecution has failed to establish
that the seized articles were not or could not be tempered with before it
reached the Bureau for examination. Further following was sta ted in
para 8:
“8....Apart from the above missing link and the sus picious
circumstances surrounding the same, there is another circumstance
which also casts a serious mistrust as to genuineness o f the
evidence. Even though the specimen fingerprints of Mohd. Aman
had to be taken on a number of occasions at the behest of the
Bureau, they were never taken before or under the order of a
Magistrate in accordance with Section 5 of the Identificati on of
Prisoners Act. It is true that under Section 4 thereof p olice is
competent to take fingerprints of the accused but to dispel any
suspicion as to its bona fides or to eliminate the possibil ity of
fabrication of evidence it was eminently desirable that they were
taken before or under the order of a Magistrate.....”
(underlined by us)
31. The above observation although clearly mentions that under
Section 4 Police officer is competent to take fingerprints of the accused
but to dispel as to its bona fide or to eliminate the fabrication of evidence
it was eminently desirable that they were taken before o r under the
order of magistrate.
32. The observation cannot be read to mean that this Court held
that under Section 4 Police Officer are not entitled to take fingerprints
until the order is taken from the Magistrate. The obser vations were
made that it is desirable to take the fingerprints be fore or under the
order of the Magistrate to dispel any suspicion. Especially, the suspicions
which were caused in the above case which is clear from the facts
noticed in para Nos. 7 and 8. Observations of this Court in Mohd.
Aman’s case was in the facts of that case and cannot be read to mean
that Police Officer cannot obtain fingerprints without obtaining an order
from Magistrate under Section 5.
33. In this context, it is useful to note another judgment of t his
Court in Prakash vs. State of Karnataka, (2014) 12 SCC 133 where
two-Judge Bench of this Court relying on Mohd. Aman (supra) has
given following observations in para 28:
SONVIR @ SOMVIR v. THE STATE OF NCT OF DELHI
[ASHOK BHUSHAN, J.]
“28. Assuming Prakash’s fingerprint was in fact obtained by
D’Souza, it was clearly not given voluntarily, but perhaps unwittingly
and in what seems to be a deceitful manner. To avoid any suspicion
regarding the genuineness of the fingerprint so taken or resort to
any subterfuge, the appropriate course of action for the investigating
officer was to approach the Magistrate for necessary orders in
accordance with Section 5 of the Identification of Prisoners Act,
1920. In Mohd. Aman v. State of Rajasthan this Court referred
to the possibility of the police fabricating evidence and to avoid an
allegation of such a nature, it would be eminently desirable that
fingerprints were taken under the orders of a Magistra te. We
may add that this would equally apply to the creating evidence
against a suspect. This is what this Court had to say: (SCC p. 49,
para 8)
“8. … Even though the specimen fingerprints of Mohd. Aman
had to be taken on a number of occasions at the behest of the
Bureau, they were never taken before or under the order of a
Magistrate in accordance with Section 5 of the Identification
of Prisoners Act. It is true that under Section 4 thereof police
is competent to take fingerprints of the accused but to dispel
any suspicion as to its bona fides or to eliminate the possibility
of fabrication of evidence it was eminently desirable that they
were taken before or under the order of a Magistrate.””
34. This Court in above case repeated and reiterate d the
observations of the Mohd. Aman case , which we have already discussed
above.
35. It is necessary to refer to a Three Judge Bench judgment of
this Court in Shankaria vs. State of Rajasthan (supra) . This Court in
the above case had occasion to notice Section 4 and Section 5 of the
1920 Act where submission was raised before this Court that specimen
of thumb impression of the appellant having not been obtained be fore
the magistrate they cannot be relied. The argument was repelled by this
court and following was laid down in paras 83 and 84:
“83. Mr Gambhir next contends that in view of Section 5 of the
Identification of Prisoners Act, it was incumbent on the police to
obtain the specimen thumb-impressions of the appellant before a
Magistrate, and since this was not done, the opinion rendered by
859
the Finger Print Expert, Mr. Tankha, by using those illegally obtained
specimen finger-impressions, must be ruled out of evidence.
84. The contention appears to be misconceived because in the
State of Rajasthan, the Police were competent under Section 4 of
the Identification of Prisoners Act, to take the specimen fingerprints
of the accused, and this they did, in the instant case, before the
Superintendent of Police, Shri K.P. Srivastava. It was not
necessary for them to obtain an order from the Magistrate for
obtaining such specimen fingerprints.”
36. The three Judge Bench clearly held that it was not necessary
for the Police officer to obtain an order from a Magistrate for obtaining
specimen of fingerprints. Law laid down by three-Judge Bench judgment
is thus clearly applicable in the present case.
37. One of the reasons given by Full Bench of Delhi High Court
in Sapan Haldar case was that there being no rules or executive
instructions prescribing a manner of taking of fingerprints, Police Officer
cannot exercise the power under Section 4. We need to dwell this aspect
little more. The word prescribed has been defined under Section 2(c) as
“prescribed means prescribed by rules made under this Act”. Section 8
empowers the State Government to make rules for the purpose of
carrying into effect the provisions of the Act. Section 8 is as follows:
“8. Power to make rules .—(1) The State Government may, 1[by
notification in the Official Gazette,] make rules for the purpose of
carrying into effect the provisions of this Act.—(1) The St ate
Government may, 1[by notification in the Official Gazette,] make
rules for the purpose of carrying into effect the provisions of this
Act.”
(2) In particular and without prejudice to the generality of the
foregoing provision, such rules may provide for—
(a) restrictions on the taking of photographs of persons under
section 5;
(b) the places at which measurements and photographs may be
taken;
(c) the nature of the measurements that may be taken;
(d) the method in which any class or classes of measurement s
shall be taken;
SONVIR @ SOMVIR v. THE STATE OF NCT OF DELHI
[ASHOK BHUSHAN, J.]
(e) the dress to be worn by a person when being photographed
under section 3; and
(f) the preservation, safe custody, destruction and disposa l of
records of measurements and photographs.
[(3) Every rule made under this section shall be laid, as soon as
may be after it is made, before State Legislature.]”
38. Whether the power of the Police Officer under Section 4
cannot be exercised till the State make rules under Secti on 8? The
appellant supporting the judgment of the Delhi High Court contends that
since Section 4 uses the words “allow his measurement to be take n in
the prescribed manner”, unless there is a prescribed manner by the rules
fingerprints cannot be taken. The power of the State given under Section
8 to frame rules is an enabling power. The word used under Section 8 is,
the State Government “may”. Can it mean that till the rules are framed
by the State, power under Sections 3 and 4 cannot be exercis ed? The
power given to the Police Officer to ask a person arrested to give his
measurements is a substantive power. This power is hedg ed by the
condition that such measurement has “to be taken in the prescrib ed
manner” if there is any prescribed manner that cannot be bre ached by
such Police Officer. Taking of the measurements in the prescribed manner
is a procedural part of the Section which does not affect the substantive
power of the Police Officer to ask an accused who is under a rrest to
give his measurement.
39. In event, it is held that unless the rules are framed under
Section 8 power under Section 4 cannot be exercised that will not be in
consonance with the very purpose and object for which Section 4 has
been enacted. The submission of the appellant further is that when there
is no rule framed providing prescribed manner for taking fingerprints,
resort to Section 5 has to be taken by IO. Section 5 is a separate power
given to Magistrate. The power of the Magistrate is an addit ional and
separate power to secure ends of justice for purpose of inv estigation
and proceedings under Code of Criminal Procedure. It may be exercised
even in a case where after arrest Police Officer has not taken fingerprints
of an accused. But, it cannot be held that power under Section 4 can be
exercised by the Police Officer only after obtaining an ord er under
Section 5.
861
40. One more aspect needs to be looked into. Section 3 also
provides for taking of measurements of convicted person. Section 3 also
uses the phrase “allow the measurement and photographed be taken by
Police Officer in the prescribed manner”. Now, if the phrase “prescribed
manner” has to be read as existence of a rule providing for a prescribed
manner of taking of evidence, in absence of rule no fingerprints can be
taken under Section 3 also of a convicted person, it is relevan t to note
that Section 5 can also not be resorted in Section 3. Since Section 5 can
only be resorted for the purposes of any investigation or proceeding
under the Code of Criminal Procedure 1898. After a conviction of an
accused Section 5 is inapplicable then if the interpretatio n placed by
appellant is accepted, even for convicted persons, it would not be
permissible to ask measurement unless the rules are framed.
41. In this context, we may like to refer the judgment of Constitution
Bench of this court in V.T. Khanzode and Others vs. Reserve Bank of
India and Another (1982) 2 SCC 7 . In the above case, this Court had
occasion to consider the Reserve Bank of India Act, 1934, Section 58
sub section (2). Section 58 was power of the Central Board for making
regulations. Section 58(1) and (2) has been referred in para 13 of the
judgment which is to the following effect:
“13. Turning to the first question, Section 58(1) of the Reserve
Bank of India Act, 1934 provides that:
“The Central Board may, with the previous sanction of the
Central Government, make regulations consistent with this Act
to provide for all matters for which provision is necessary or
convenient for the purpose of giving effect to the provisions of
this Act.”
Sub-section (2) of Section 58 provides that in particular and
without prejudice to the generality of the foregoing provision,
such regulations may provide for all or any of the matter s
mentioned in the various clauses of that sub-section. Clause
(j) refers to “the constitution and management of staff and
superannuation funds for the officers and servants of the Bank”,
while clause ( r) refers to the subject: “generally, for the efficient
conduct of the business of the Bank”....”
SONVIR @ SOMVIR v. THE STATE OF NCT OF DELHI
[ASHOK BHUSHAN, J.]
42. This Court on Section 58(1) had observed that the power
given to Central Board was an enabling power which is clear from the
use of word “may”. Following was observed in para 18 marked portion:
“18.....On that argument, it is material to note that Section 58(1)
is in the nature of an enabling provision under which the Central
Board “may” make regulations in order to provide for all matters
for which it is necessary or convenient to make provision for the
purpose of giving effect to the provisions of the Act. This provision
does not justify the argument that staff regulations must be framed
under it or not at all. The substance of the matter is that the Central
Board has the power to frame regulations relating to the conditions
of service of the Bank’s staff. If it has that power, it may exercise
it either in accordance with Section 58(1) or by acting appropriately
in the exercise of its general power of administrat ion and
superintendence.”
43. The Constitution Bench also held that in absence of regulation
under 58(1), the Central Board could have issued administrative circulars
and there was no prohibition in regulating service c onditions by
administrative circulars.
44. The above view of ours find support from the judgment of
this Court reported in (1986) 4 SCC 667, Surinder Singh Vs. Central
Government & Ors. In the above case, this Court had occasion to
consider the provisions of Displaced Persons (Compe nsation and
Rehabilitation) Act, 1954. Section 8 of the Act lays down that a displaced
person shall be paid compensation as determined under Section 7 “subject
to the rules that may be made under this Act”. Section 40 confers
power on the Central Government to frame rules to carry out the purpose
of the Act. Clause (j) of sub-section (2) of Section 40 provides for framing
of rules laying down procedure for transfer of propert y out of the
compensation pool and the manner of realisation of the sale pr oceeds.
The Central Government had not framed rules regulating the disposal by
sale or otherwise of urban agricultural land formin g part of the
compensation pool.
45. The authority constituted under the Act disposed of urban
agricultural property by auction sale. The High Court had held t hat
disposal of property forming part of the compensation pool was “subject”
to the rules framed as contemplated by Sections 8 and 40 of the Act and
863
since no rules had been framed by the Central Government with regard
to the disposal of the urban agricultural property forming part of the
compensation pool, the authority constituted under the A ct had no
jurisdiction to dispose of urban agricultural property by auction-sale.
46. This Court reversing the above opinion of the High Court held
that where a statute confers powers on an authority to do certain acts or
exercise power in respect of certain matters, subject to rules, the exercise
of power conferred by the statute does not depend on the existence of
rules unless the statute expressly provides for the same. In Para 6,
following has been laid down:-
6........... In our opinion the view taken by the High Co urt is
incorrect. Where a statute confers powers on an authority t o do
certain acts or exercise power in respect of certain matters, subject
to rules, the exercise of power conferred by the statute does no t
depend on the existence of rules unless the statute expressly
provides for the same. In other words framing of the rules is not
condition precedent to the exercise of the power expressly a nd
unconditionally conferred by the statute. The expression “subject
to the rules” only means, in accordance with the rules, if any. If
rules are framed, the powers so conferred on authority could be
exercised in accordance with these rules. But if no rules are framed
there is no void and the authority is not precluded from exercising
the power conferred by the statute....................”
47. This Court further held that framing of the rules regulating the
mode or manner of disposal of urban agricultural property by sale to a
displaced person is not a condition precedent for the exercise of power
by the authorities concerned under Sections 8, 16 and 20 of the Ac t.
Following was laid down in Paragraph 7:-
“7. ...........Framing of rules regulating the mode or manner of
disposal of urban agricultural property by sale to a displaced person
is not a condition precedent for the exercise of power by the
authorities concerned under Sections 8, 16 and 20 of the Act. If
the legislative intent was that until and unless rules were framed
power conferred on the authority under Sections 8, 16 and 20
could not be exercised, that intent could have been made clear by
using the expression “except in accordance with the rules framed”
a displaced person shall not be paid compensation by sale of pool
SONVIR @ SOMVIR v. THE STATE OF NCT OF DELHI
[ASHOK BHUSHAN, J.]
property. In the absence of any such provision the framing of
rules, could not be a condition precedent for the exercise of power.”
48. What has been laid down above is fully attracted in the facts
of the present case. Non-framing of any rules under Sect ion 8 by the
State Government does not prohibit the exercise of powers given under
Sections 3 and 4 of the Act. Exercise of power under Sections 3 and 4
is hedged by conditions as prescribed but in a case where no rules have
been framed, the authorities as empowered under Sections 3 and 4 are
not denuded of their powers to act under Sections 3 and 4. In a ca se,
the interpretation put by the learned counsel for the appel lant that in
absence of rules framed under Section 8, no power can be e xercised
under Sections 3 and 4 is accepted, the provisions of Sections 3 a nd 4
shall become dead letter, which has never been the intenti on of the
legislature in enacting the 1920 Act.
49. It is relevant to note that the Delhi High Court in para 23 of
the impugned judgment has discarded the chance evidence of pa lm
impression by observing “no rules having been framed in Delhi and
procedure as prescribed in Section 5 of Identification of Prisoners and
having not been followed, we would thus discard the evidences of palm
impressions”. Whether there were any executive instructions regarding
taking of fingerprints in State of Delhi or not is an issue on which there
is no clear materials. It is not the case of the appellant before any Court
that fingerprints were taken in disregard of any executive instructions
applicable in the State of Delhi.
50. Learned counsel for the respondent referring to the evidence
of PW32 where he made a statement regarding taking of fingerprints of
the accused, contended that there was no cross-examinati on by the
defence on this aspect. It is useful to extract following p ortion of the
written submissions of the respondent:
“In this regard, the deposition of PW 32 at pg 173(bottom) is
relevant, “During police custody remand of accused, I took finger
print of accused Rajesh@Sultan and sonvir@Somvir. The same
as well as the chance print picked up by SI Naresh Kumar we re
sent to the Fingerprint Bureau, Malviyanagar, for their comparison.
My application in this regard is Ex PW32/N.” There is no cross
examination by the defence on this aspect.”
865
51. In view of the foregoing discussion we are of the opinion that
view of the Delhi High Court that evidence of fingerprints of the accused
has to be discarded cannot be supported for the reasons given i n the
impugned judgment of the Delhi High Court.
52. Even if, we accept that fingerprints of appellant’s, cha nce
print Mark Q5 (taken from iron safe) was identical to the sp ecimen of
left palm impression of Sonvir, it does not complete the chain of
circumstances unerringly pointing out fingers to the appellant, that it was
the appellant who committed the murder. Law of conviction bas ed on
circumstantial evidences is well settled. It is sufficien t to refer to the
judgment of this Court in Ramesh and Others vs. State of Rajasthan,
(2011) 3 SCC 685 where in para 17 following has been held:
“17. Before we proceed with the matter, it has to be borne in
mind that this case depends upon circumstantial evidence and, as
such, as per the settled law, every circumstance would have to be
proved beyond reasonable doubt and further the chai n of
circumstances should be so complete and perfect that the only
inference of the guilt of the accused should emanate therefrom .
At the same time, there should be no possibility whatsoever of the
defence version being true.”
53. Thus, even if, above evidence is not discardable the entire
chain of circumstances is not complete to unmistakeably point out the
guilt to the appellant.
54. In result, the appeal is allowed. The appellant stands acquitted
of the charges under Sections 302, 392 read with Section 34 of the IPC.
The appellant is directed to be released forthwith, if not required in any
other case.
Kalpana K. Tripathy Appeal allowed.
SONVIR @ SOMVIR v. THE STATE OF NCT OF DELHI
[ASHOK BHUSHAN, J.]